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I practised as a family lawyer from 1983 until 2009. I recall that the ‘oldest’ case I dealt with, in terms of relevant facts, was a divorce case in which the parties had separated way back in 1966. Exactly when I dealt with the case I can’t recall, but it was probably in the late 80s or early 90s, so the separation had happened some twenty or so years before I acted for my client. I don’t remember that the passing of that period of time caused any particular problems in dealing with the case, but it certainly could have done.

That, though, is nothing compared to the passage of time that elapsed between the relevant events and the hearing in the recent case Constandas v Lysandrou & Others, and in that case it certainly did cause problems, effectively fatal ones, to Mr Constandas’s claim.

The claim concerned a property purchased by Mr Constandas’s sister Mrs Lysandrou and his brother-in-law, Mr Lysandrou, way back in June 1959. Mr Constandas claimed that he was entitled to a half share of the property, as he had contributed half of its purchase price of £1,200, by making the down payment of £600 from the sum of £643 that was in his bank account shortly before the purchase.

The claim was dealt with in accordance with the principles set out by the House of Lords in the 2007 case Stack v Dowden. As I explained here back in 2014, that case made it clear that the starting-point when determining shares in a property is what the deeds say, and the onus is on the person claiming a different share from that stated in the deeds to prove that they are entitled to that share.

Here, of course, the deeds indicated that the property was owned by Mr and Mrs Lysandrou. Therefore, the onus fell upon Mr Constandas to prove that he was entitled to a half share. Accordingly, the case turned upon whether he could show that he had contributed the down payment of £600 when the house was bought.

As one can imagine, there were considerable problems when it came to the evidence available to the court regarding events back in 1959. Not only was there a dearth of documentary evidence, but Mr Constandas was 86 at the time of the trial, and Mr and Mrs Lysandrou were suffering from dementia and therefore unable to give evidence. Mr Constandas could show that he had the £643 in his account prior to the purchase, but there was no evidence of a withdrawal of that money to be used as the down payment.

In the end the judge concluded that on the evidence available to her she could not arrive at any findings as to who had paid the £600 down payment in 1959. She therefore held that Mr Constandas had not discharged the burden of proof that lay upon him as the claimant in the proceedings, and accordingly dismissed the claim. Mr Constandas appealed to the Court of Appeal, essentially arguing that the judge should have found that he had proved his case.

The Court of Appeal disagreed. Giving the leading judgment Mrs Justice Rose said that:

“The burden was on Mr Constandas to show that he had made the payment. In the absence of any positive reliable evidence to show that he had done so, he was in effect inviting the court to draw an inference in his favour from the absence of any other plausible source for the funds. That would be a bold inference for the court to draw, particularly in circumstances where Mr and Mrs Lysandrou were unable to give direct evidence themselves because of their dementia. The Judge concluded that she could not rule out an alternative source for the money and so could not infer that it must have come from the £643 held in Mr Constandas’ account. Given that there was no positive evidence of Mr Constandas’ payment and given that she could not rule out any other source, it was inevitable that she concluded that Mr Constandas had not proved his case.”

Mrs Justice Rose therefore held that there was no basis for the Court of Appeal to interfere with the judge’s conclusion, and that the appeal should be dismissed. Lord Justice Kitchin gave a concurring judgment.

A highly unusual case, but nevertheless a reminder of two important points for anyone intending to contribute money to the purchase (or improvement) of a property: firstly make sure you keep proper evidence of that contribution and secondly take legal advice!

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